Aquaculture and Fisheries Consultation Analysis - Summary Report

Summary report of the analysis of the responses to the Aquaculture and Fisheries Bill Consultation, partial Business and Regulatory Impact Assessment and Strategic Environmental Assessment Environmental Report

8 Section 5 - Modernising Enforcement Provisions

Question 37. Do you agree that strict liability criteria
should apply - where they capable of being applied - for offences
related to Marine Licensing requirements insofar as they apply to
aquaculture operations and, potentially, in other
situations?

Sector

Yes

No

No comment

1. Public Bodies

8

0

4

2. Aquaculture

1

16

1

3. Marine fisheries

3

0

3

4. Freshwater fisheries

33

1

16

5. Professional/Academic Bodies

1

1

1

6. Voluntary Sector

13

0

8

7. Individuals/Politicians

11

10

13

8. Other Commercial

0

2

3

Overall

70

30

49

8.1 While many of those who responded to this question supported
this proposal, there was strong opposition (amongst those who
responded) from the aquaculture and other commercial businesses
stakeholder groups.

8.2 Several respondents suggested circumstances where the
proposal could be usefully applied, e.g. escapes of farmed fish
from aquaculture facilities.

8.3 There were, however, strong views from opponents that this
proposal was disproportionate to the perceived problem, may be
unfair and ineffective, and could have damaging impacts on the
aquaculture industry. They also questioned the need for this
measure.

8.4 One respondent requested further information on statutory
defences that may also be introduced by the Bill.

Question 38. Do you agree that we should extend the use
of fixed financial penalties as alternatives to prosecution in
relation to marine, aquaculture and other regulatory issues for
which Marine Scotland has responsibility?

Sector

Yes

No

No comment

1. Public Bodies

8

0

4

2. Aquaculture

2

15

1

3. Marine fisheries

3

3

0

4. Freshwater fisheries

13

0

37

5. Professional/Academic Bodies

2

0

1

6. Voluntary Sector

7

3

11

7. Individuals/Politicians

6

13

15

8. Other Commercial

0

1

4

Overall

41

35

73

8.5 Less than half of consultees answered this question, and
there were mixed views on the use of fixed penalties amongst those
that did answer.

8.6 Some of those in favour of the proposal felt that it could
be widened beyond the aquaculture industry and suggested public
disclosure of offences.

8.7 Some expressed concerns about this becoming a normal
business cost or a means of reducing the administrative burden.

8.8 There was strong opposition from the aquaculture industry to
the proposal. These respondents felt that it would be
disproportionate and also questioned the evidence base to justify
it.

Question 39. Do you agree that we should increase the
maximum sum that can be levied through a fixed penalty notice to
£10,000?

Sector

Yes

No

No comment

1. Public Bodies

7

0

5

2. Aquaculture

1

15

2

3. Marine fisheries

1

4

1

4. Freshwater fisheries

10

1

39

5. Professional/Academic Bodies

1

1

1

6. Voluntary Sector

8

2

11

7. Individuals/Politicians

9

8

17

8. Other Commercial

0

1

4

Overall

37

32

80

8.9 Less than half of the consultees answered this question.
There were mixed views on increasing the maximum sum for fixed
penalty notices amongst those who did respond.

8.10 Aquaculture and marine fisheries industry respondents were
strongly opposed, questioning what evidence there was to support
the proposal. Several respondents considered that the maximum limit
would be disproportionate to any non-compliance, and felt that a
modern risk-assessed regulatory approach is needed.

8.11 There was a range of views on the penalty value, with some
supporting a higher figure, and others questioning the potential
impact of the proposed amount on smaller businesses. A
proportionate approach was again suggested.

Question 40. Are there particular regulatory areas that
merit a higher or lower maximum sum?

Sector

Yes

No

No comment

1. Public Bodies

2

5

5

2. Aquaculture

2

15

1

3. Marine fisheries

2

2

2

4. Freshwater fisheries

9

1

40

5. Professional/Academic Bodies

1

1

1

6. Voluntary Sector

8

1

12

7. Individuals/Politicians

7

9

18

8. Other Commercial

0

1

4

Overall

31

35

83

8.12 Over half of respondents elected not to answer this
question.

8.13 There was no consensus amongst respondents on whether there
was a case for higher fixed penalty sums in certain regulatory
circumstances. Many referred to their responses to Question 39.

8.14 Several consultees suggested circumstances where higher
penalties could be merited, including those relating to
environmentally sensitive areas, escapes and persistent breaches of
regulations.

Question 41. Do you agree that we should amend section
30(1) of the Fisheries Act 1981 as proposed?

Sector

Yes

No

No comment

1. Public Bodies

8

0

4

2. Aquaculture

2

0

16

3. Marine fisheries

3

3

0

4. Freshwater fisheries

10

0

40

5. Professional/Academic Bodies

2

0

1

6. Voluntary Sector

9

0

12

7. Individuals/Politicians

7

1

26

8. Other Commercial

0

0

5

Overall

41

4

104

8.15 Those who responded to this question (around a third of all
respondents) largely supported the proposed amendment.

8.16 Some felt that this would bring Scottish provisions into
line with the requirements of the Marine and Coastal Access Act
2009 in England and Wales.

8.17 Some respondents suggested that the Fisheries Act 1981
could be further amended to place an emphasis on an ecosystem-based
approach to sustainable fisheries management in some sections.

Question 42. Do you agree that sea fisheries enforcement
officers should be given specific power to allow vessels to be
detained in port for the purposes of court proceedings?

Sector

Yes

No

No comment

1. Public Bodies

8

0

4

2. Aquaculture

2

0

16

3. Marine fisheries

3

3

0

4. Freshwater fisheries

13

0

37

5. Professional/Academic Bodies

2

0

1

6. Voluntary Sector

9

0

12

7. Individuals/Politicians

10

0

24

8. Other Commercial

0

0

5

Overall

47

3

99

8.18 While almost two-thirds of consultees declined to answer
this question, there was strong support for the proposal from those
who did.

8.19 While few additional comments were received on this
proposal, support for it was based on the closure of a loophole for
foreign vessels, and bringing powers into line with those in
England and Wales.

8.20 One respondent felt that it was imperative that enforcement
officers are given sufficient resources for this.

8.21 One respondent who opposed the proposal stated that vessels
should be allowed to return to sea.

Question 43. Do you agree that sea fisheries enforcement
officers should be able to dispose of property seized as evidence
when it is no longer required, or forfeit items which would be
illegal to use?

Sector

Yes

No

No comment

1. Public Bodies

8

0

4

2. Aquaculture

2

0

16

3. Marine fisheries

4

2

0

4. Freshwater fisheries

14

0

36

5. Professional/Academic Bodies

2

0

1

6. Voluntary Sector

9

0

12

7. Individuals/Politicians

10

0

24

8. Other Commercial

0

0

5

Overall

49

2

98

8.22 While almost two-thirds of consultees declined to answer
this question, there was strong support for the proposal from those
who did. The marine fisheries sector was the only group with mixed
views.

8.23 Several respondents felt that there should be regulation of
gill netting, that illegal netting should be targeted, and that it
should be illegal to sell equipment that is not legal in the
UK (specifically monofilament gill nets).

Question 44. Do you agree that sea fisheries enforcement
officers should have the powers to inspect object in the sea and
elsewhere that are not obviously associated with a vessel,
vehicle or relevant premises?

Sector

Yes

No

No comment

1. Public Bodies

7

0

5

2. Aquaculture

1

1

16

3. Marine fisheries

4

2

0

4. Freshwater fisheries

13

0

37

5. Professional/Academic Bodies

2

0

1

6. Voluntary Sector

9

0

12

7. Individuals/Politicians

9

1

24

8. Other Commercial

0

0

5

Overall

45

4

100

8.24 While almost two-thirds of consultees declined to answer
this question, there was strong support for the proposal from those
who did.

8.25 A respondent discussed procedures for undertaking these
inspections, requesting that officers have reasonable cause for an
inspection and that those parties responsible be given an
opportunity to be involved.

Question 45. Do you have any views on the proposals to
amend the Sea Fisheries (Shellfish) Act 1967 to help make its
application clearer?

Sector

Yes

No

No comment

1. Public Bodies

7

2

3

2. Aquaculture

2

2

14

3. Marine fisheries

2

4

0

4. Freshwater fisheries

8

1

41

5. Professional/Academic Bodies

2

0

1

6. Voluntary Sector

5

3

13

7. Individuals/Politicians

4

5

25

8. Other Commercial

0

0

5

Overall

30

17

102

8.26 While over two-thirds of respondents declined to answer
this question, there was general support across most stakeholder
groups who did respond. The marine fisheries sector were largely
opposed.

8.27 One shellfish industry respondent felt that the Act was
sufficiently defined and opposed any amendment on the grounds that
it would incur unnecessary costs.

8.28 Some respondents felt that the Act should be made 'fit for
purpose', with several suggesting the definition of shellfish be
made consistent across regulatory regimes, and that any amendments
should support regulating orders to implement regional management
systems within inshore waters.